Higher Education (Freedom of Speech) Bill

Baroness Thornton Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, these amendments all refer to student unions. We have been concerned about the rather heavy-handed approach to student unions in the Bill. Amendment 16, to which my noble friend Lord Wallace has added his name, seeks to ensure that student unions are fully aware of the regulations with which they must comply. We are particularly concerned in connection with further education student unions, which are likely to be very small and have very few funds available. Presumably they are included in the Bill. The regulations are complex and students will obviously be transitory in post, so simplicity of guidance is essential if they are not to find themselves caught up in unwittingly breaching the rules, as the noble Lord, Lord Triesman, has just set out. This amendment would be a very straightforward way of helping students, and it would be very easy to adopt.

Like others, we support the intention of Amendments 11, 15 and 25 but we remain unsure about how they could be implemented. As the noble Lord, Lord Macdonald, said, some of these actions may well be criminal behaviour, in which case they do not need to be part of the Bill because they should be something else. I liked the tale told by the noble Lord, Lord Grabiner. There are other ways of dealing with hecklers, and ridicule is often one of the very best. We do not see that these amendments should be in the Bill, but some code of practice or regulation would probably be worth it. However, Amendment 16 is well worth government consideration.

[Baroness Thornton (Lab)]

My Lords, we have had a thorough exploration of the issues that would face student unions as a result of the passage of the Bill. Amendment 16 in the names of my noble friends Lord Collins and Lord Blunkett and me, with the support of the noble Lord, Lord Wallace of Saltaire, is not intended to be patronising. It seeks to ask the Government whether they will ensure that the guidance to student unions gives young people all the help and support it can to carry out the duties and responsibilities that the Bill will impose on them. Some of them will be 17, 18 or 19 years old, and this will be something they are absolutely unfamiliar with. That is really all that one needs to say about Amendment 16.

I agree that Amendments 11, 15 and 25 are probably not appropriate for the Bill. As somebody who has been a moderately successful heckler myself, I think they certainly should not be in the Bill.

[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to codes of practice and the guidance under the Bill. I thank all noble Lords for their thoughtful and considered remarks.

Amendments 11 and 15 tabled in the name of the noble Lord, Lord Hunt of Kings Heath, would require higher education providers, colleges and student unions to include in their codes of practice specific measures

“to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker”.

Amendment 25 would require the Office for Students to include in any guidance it issues under new Section 69A, in Clause 5 of the Bill, guidance on such measures.

The purpose of the Bill is to protect freedom of speech within the law. As part of that freedom, individuals have the freedom to speak on topics of their choice, as well as to engage in peaceful protest against such speech, as the noble Lord clearly stated. These aspects of freedom of speech both need to be protected. The Bill does not give priority to one individual over another. This means that providers, colleges and student unions must take “reasonably practicable” steps to ensure that speakers who are speaking within the law, as well as those who wish to protest in disagreement with those views, are able to speak—and are not, in the noble Lord’s words, forced to stand by passively.

I should be clear that the Bill means protest in the form of speech, writing or images, including in electronic form. It does not include, for example, tying oneself to a railing or blocking a street—activities that are not speech and therefore not covered by this legislation, but are clearly covered by other legislation.

I reassure your Lordships that we expect event organisers to plan for what to do in the event of disruptive protests. The duty to take “reasonably practicable” steps does not mean that such disruption has to be tolerated. In fact, the duty to take such steps, as regards the speaker at the event, means that action should be taken to deal with such disruption. That might mean that security should be provided or that a protest outside a venue should be set back sufficiently from the windows.

The codes of practice are already required under the Bill to set out “the conduct required” of staff and students in connection with any meeting or activity on the premises. I hope that addresses the question from the noble Lord, Lord Triesman, about whether this applies to individuals. These amendments are not necessary as the issue is already covered by the Bill.

Equally, we expect the OfS to consider these practical issues and to provide advice about how providers, colleges and student unions can fulfil their duties, as well as share best practice that they identify—again, a point raised by the noble Lord, Lord Hunt of Kings Heath.

I trust that your Lordships are reassured by what I have said about how the Bill will operate and will agree that these amendments are not needed.

Amendment 16 tabled by the noble Lord, Lord Collins of Highbury, seeks to ensure that clear guidance is issued by the Secretary of State within three months of the passing of the Bill to help student unions to comply with their new duties. The publication of guidance for student unions is already covered by the Bill. Section 75 of the Higher Education and Research Act 2017 is amended by paragraph 9 of the Schedule to the Bill. Section 75, as amended, will provide that the regulatory framework which the Office for Students is required to publish must in future include

“guidance for students’ unions to which sections A5 and A6 apply on their duties under those sections”.

This must include

“guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6”.

The guidance may in particular specify what the OfS considers that student unions need to do to comply with those duties under new Sections A5 and A6, and the factors which the OfS will take into account in determining whether a student union is complying with its duties. It is worth noting that Section 75 requires consultation on the regulatory framework before its publication, and it must therefore be laid before Parliament, giving proper transparency.

In the new regulatory regime that the Bill will establish, including under Section 75, it would be wrong for separate guidance to be published by the Secretary of State rather than the regulator—the OfS. It would also, in practical terms, be too tight a timescale to require publication within three months of Royal Assent. There will be a great deal of work to be done on implementation, including setting up a complaints scheme team, drafting the new complaint scheme rules, drafting guidance, consulting on the changes to the regulatory framework and making those regulations; as your Lordships know, that will take time.

I hope my explanation has satisfied the concerns of the noble Lord and that the House will agree that the Bill deals with these issues appropriately as it stands.

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[Lord Moylan (Con)]

My Lords, I rise to speak to Amendment 21, standing in my name. It dawned on me, as I said in Committee, that the purpose of some noble Lords was not to improve this legislation that has been passed by the Commons but to eviscerate it. The speech just given by the noble Lord, Lord Grabiner, seems to illustrate exactly that.

One of the few things on which I agreed with my noble friend Lord Willetts in Committee was when he said that there were two powerful elements in this Bill that made a real change, one of which was Clause 4. That is why it is a crying shame that the Government have conceded so much in relation to Clause 4; they have effectively turned it into a shrivelled sausage when it could have been something that actually made a real difference. But even with that concession from the Front Bench, it does not seem to be enough for my noble friend Lord Willetts or the noble Lord, Lord Grabiner, who are insisting that even that pathetic thing be removed and crushed altogether.

A principal argument in favour of Amendment 20, tabled by my noble friend on the Front Bench, is that the Government intend thereby to give the universities an opportunity to resolve the problem through mediation and a complaints system. The difficulty is that, in terms, university authorities have expressed repeatedly the fact that they do not consider that there is a problem: they consider it to be an invented problem, or a problem which, if it exists at all, is rare and egregious and can be handled by the universities. Plainly, there are those of us who feel that the universities have failed to handle it, and need to be brought to book.

If the universities genuinely want to give mediation a chance, Amendment 21, standing in my name, gives them the opportunity to demonstrate that. A similar amendment was tabled in Committee by my noble friend Lord Sandhurst, and it is retabled here—I am grateful to the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Strathcarron for adding their names to it. Amendment 21 would retain the substance of Clause 4 as originally proposed by the Government and approved by the other place, but would give to universities the opportunity in each case to ask the court to stay proceedings so as to allow mediation to take place. It would be at the discretion of the court whether to agree to that. I am sure that, if the court thought that there was a prospect of success in the mediations, it would agree.

This is modelled on legal practice in certain other areas where I understand, for example, that the provision and possibility exist—although noble Lords know that I make no claim to be a legal expert on pensions entitlements and so on. So the principle is a workable one: the university can say, “Please will you stay the proceedings while we exercise mediation”. It preserves the substance of the tort in Clause 4 and gives academics, in particular, an opportunity to make their representations in the way that the Government originally envisaged.

I will address the Government’s proposal, because the proposal being advanced by my noble friend Lord Willetts—who I understand may speak shortly—and endorsed by the noble Lord, Lord Grabiner, is to delete the clause altogether. The Government’s proposal would allow those administering the complaints system to indulge in indefinite delay. There is no time limit by which a decision has to be reached in this amendment. My noble friend Lord Howe said something vague about how he thought that 12 months might be something that already existed and might therefore be applied or extended to this activity, but there is actually no time limit by which a complaint has to be resolved which would allow the complainant to trigger the tort. It would remove the possibility of seeking urgent injunctive relief, which is something that could be obtained through the courts. It would push complainants back to a choice between a financially ruinous application for judicial review—because it is financially ruinous for the individual —or continuing with a possibly endless complaints process in which, as has been said by others in this context, the punishment is the process. You are an academic with a career to pursue and you are probably not even in a properly tenured post, but to vindicate your rights you have to undertake a process, extending potentially over many months, which comes to consume your life and, ultimately, to damage your career. It is an unenviable choice, and the tort gave people some other option to allow, potentially, for more rapid relief.

Most of all, the Government’s amendment sends a signal to academics who feel oppressed, feel that they cannot express themselves and feel that they are required to conform to an ideology which they know in their heart they do not endorse that a Government who had said that they were on their side and were taking steps to protect them are no longer interested. That is a very bad signal indeed to be sending. I am sorry to say this, but I think that the Government are being feeble.

[Baroness Thornton (Lab)]

That is true.

[Lord Moylan (Con)]

Now that was a heckle of some value.

To conclude, it might be nice if the Front Bench, which has shown itself capable of endorsing enthusiastically the very laudable Amendment 6, tabled by the Labour Front Bench, could reciprocate by accepting one from its supportive Back-Benchers. If so, I strongly recommend Amendment 21 in my name.

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Moved by

[Baroness Thornton]

26: Clause 9, page 12, line 41, after “provider” insert “or the governing body of a constituent institution”
Member’s explanatory statement
This amendment would make provision for collegiate universities, making clear that a governing body of a college – rather than their overarching provider – should report information under Clause 9.

[Baroness Thornton (Lab)]

My Lords, we have three amendments in this group, which have been proposed by my noble friend Lord Collins, with the support of my noble friends Baroness Royall and Lord Blunkett. They pick up some of the questions that were raised in Committee about transparency and proportionality with regards to overseas funding.

Amendment 26 would make provision for collegiate universities, making it clear that it is the governing body of a college, rather than its overarching provider, that should report information to the Office for Students under Clause 9.

Amendment 27 is intended to make the OfS power to gather information more proportionate, and to prevent commercially sensitive information being subject to a freedom of information request through the regulator having requested it. Several colleges and universities have contacted us about this matter, as I am sure is true for other noble Lords, so it is important that this be clarified at this stage.

Amendment 28 would prevent universities having to disclose sensitive commercial information to the OfS, and prevent independent trading entities—for example, the university press—being forced to violate commercial contracts not governed by UK law, because, of course, many of them have contracts with overseas organisations and institutions.

That is a summary of the amendments, and as my noble friend Lord Collins said at Second Reading or in Committee, the key to addressing these issues is transparency and ensuring that that transparency is proportionate. I could quote to the House many of the problems that have been outlined to us by others who are concerned about this, but because Clause 9 explicitly includes commercial partnerships, it is vital that the Government take on board these concerns and explain, on the record, how they will be dealt with, or provide clarification at the next stage of the Bill. I beg to move.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I support these Amendments. Amendment 26 is self-explanatory, and it would be great if the Government could clarify that the governing body of a college, rather than the overarching university, will be responsible for reporting information to the OfS. It would be very good if the Minister could put that on the record today in Hansard.

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[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to overseas funding and the application of the reporting requirements to the regulator. Amendment 26, tabled in the name of the noble Lord, Lord Collins of Highbury, seeks to ensure that it is the governing body of a constituent institution rather than their registered provider that must report information required under Clause 9 to the Office for Students. This is rather complex, in that the duty of the OfS in Clause 9 is to be exercised via the existing regulatory regime for registered higher education providers. The OfS already has the power to obtain information from providers.

New subsection (4), which is the subject of this amendment, refers to Section 8(1)(b) of the Higher Education and Research Act 2017. This requires that there is a condition of registration under which the governing body of a provider must supply the OfS with information for the purposes of the performance of the OfS’s functions as the OfS may require. This is achieved by registration condition F3, as described in the OfS’s regulatory framework, which applies to providers and not to constituent institutions.

The approach in proposed new Section 69D of the 2017 Act is that the OfS may require the governing body of a provider to supply information about relevant funding received by the provider or “a connected person”. A connected person is defined in subsection (6) as including

“a constituent institution of the provider”.

The noble Baroness, Lady Royall, asked for clarification and I hope that that is clear. If it is not now, it may appear clearer in Hansard.

[Baroness Thornton (Lab)]

I think what the Minister said was quite clear, but the concern is whether that is a satisfactory way to proceed for collegiate universities.

[Baroness Barran (Con)]

As I said, it builds on the existing approach to regulation of constituent colleges.

Amendments 27 and 28, also tabled by the noble Lord, Lord Collins of Highbury, seek to reduce the scope of Clause 9. Amendment 27 would allow the Office for Students to seek information only where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. Amendment 28 would remove overseas commercial partnerships from the definition of “relevant funding”, meaning they would not be within scope of the clause.

New Section 69D(1) will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk which the funding may pose to freedom of speech and academic freedom in the provision of higher education. The only way that the OfS can monitor the funding is if it has the necessary information. The power to require such information is linked to the registration condition that already exists under Section 8(1)(b) of the Higher Education and Research Act 2017; that is, condition F3 as described in the regulatory framework that I have already mentioned. Clause 9 is not about the speculative investigation of individual contractual arrangements; it is about routine monitoring of relevant information, at a sufficient level of detail, but no more than that, to allow the OfS to monitor the risk to freedom of speech.

As I said before, Amendment 27 would limit the power to require information from providers to where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. That test sets a very high bar which could arguably never be met. The OfS would not be in a position where it could suspect a breach because it would not have evidence to support that. However, at the same time, the amendment would mean that it would not be able to require information that may provide such evidence, so this would be circular, resulting in the inability of the OfS to obtain information on overseas funding. That in turn would mean that the OfS would not be able to carry out its duty to monitor the risk to freedom of speech that overseas funding may pose. This would mean that new Section 69A would be ineffective and would subvert the whole point of the overseas funding clause.

I should add that the effect of the drafting of this amendment would not be to prevent commercially sensitive information becoming subject to freedom of information requests through the regulator having requested it, which I understand the intention of the amendment to be, noting that the amendment does not refer to that and focuses simply on suspicion of breach. In any event, approved fee cap providers are themselves subject to freedom of information requests, so disclosure of information to the regulator would not result in new exposure to that legislation, and, of course, the OfS already holds sensitive information about providers as part of its overall regulatory role—for example, financial information—so this will not be new.

As for Amendment 28 and the removal of commercial partnerships from the scope of new Section 69A, the Government are of the view that the funding received from such partnerships could pose a risk to freedom of speech and academic freedom. Accordingly, if we do not include commercial partnerships in new Section 69A, we would be leaving a large gap.

The OfS will decide on the level of detail that it will need as regards the information that it will require from providers, liaising with the sector as need be in order to determine that. The OfS will of course consider how to handle any sensitive commercial information that it requires to be provided, but, as I have said, it already holds sensitive information, so this would not be new.

I note that the noble Lord references in his explanatory statement that the clause may force a violation of commercial contracts not governed by UK law. My understanding is that commercial contracts are likely to contain a standard clause dealing with disclosure to regulators, so disclosure under the Bill would be covered by that.

As for the particular situation of a university press, which my noble friend Lord Patten of Barnes referred to, such a body will be in scope only if it is legally part of the provider. In that case, it would not be an independent trading entity. If it chooses to have as its legal status to be a department of a provider, as I am aware is the case for Cambridge University Press and Oxford University Press, it inevitably brings itself within scope of regulation as a part of that provider. I would be more than happy to follow up with my noble friend if he would like to progress that conversation or requires any further clarification on that point.

With regard to the point by the noble Lord, Lord Wallace, about the National Security Bill, as we have heard from earlier amendments, the Government are keen that there is consistency across legislation. That applies in this case also. The noble Lord also hinted at the regulatory burden. He will be aware that the Office for Students is required, when performing its functions, to have regard to the need to protect the institutional autonomy of providers and to the principles of best regulatory practice, including that it should be transparent, accountable, proportionate and consistent.

[Baroness Thornton (Lab)]

I am still not clear how the fishing expedition that the noble Lord, Lord Patten, mentioned would be avoided. That is the point here, is it not? There is a vulnerability and a risk. The Minister needs to explain that to the House—if not now, certainly before the next stage of the Bill—otherwise we will need to return to this. It is not at all clear to me how that risk is averted through the regulation that the Minister has explained.

[Baroness Barran (Con)]

Given the hour, I am more than happy to set that out in detail in a letter to the noble Baroness. I hope that will allow us to explain to the satisfaction of the House how this provision will operate and that the amendments—

[Baroness Barran (Con)]

I hear the noble Baroness’s request. I hope my letter will be able to reassure your Lordships that these amendments are not necessary.

[Baroness Thornton (Lab)]

My Lords, I think the Minister will understand that the House is still not satisfied that we are in a safe place with Clause 9. I hope we can achieve that before we get to the next stage of the Bill, but we may need to return to this at that stage. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

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Moved by

[Baroness Thornton]

29: Clause 10, page 15, line 11, at end insert—
“(1A) The appointment of the Free Speech Director is subject to a confirmatory resolution of the relevant Select Committee of the House of Commons. (1B) The person appointed as the Free Speech Director must present a report to Parliament no later than 31 December 2023, and once a year thereafter.(1C) The report must include an assessment of—(a) the impact the role is having,(b) the implementation of the Higher Education (Freedom of Speech) Act 2022, and(c) the state of freedom of speech at the providers encompassed by that Act.”

[Baroness Thornton (Lab)]

Noble Lords will know that we have galloped around the director of free speech’s appointment several times at Second Reading and in Committee. I thank the noble Baroness, Lady Bennett, and my noble friend Lord Blunkett for their support. The noble Lord, Lord Wallace, and I are obviously still at one in our concerns about this matter.

Amendment 29 would subject the appointment of the free speech director to confirmation by a Commons Select Committee and compel them to report to Parliament every year on the impact their role is having, the implementation of the Bill and the state of freedom of speech at the providers. This is important because if the Bill is to do what we want it to do—deliver protection and support for freedom of speech—then the director who is responsible for that, the regulator, should be accountable to Parliament. The fact that this person sits on the board of the Office for Students, and is therefore only the chair of the board accountable to Parliament for that work, is not satisfactory. This is too important to be delivered without having any accountability to Parliament for the director of freedom of speech, both on their appointment and the work that they do.

I am not going to repeat everything I said in Committee and earlier stages about this. I think this legislation was pre-empted by the appointment already being made—I am not absolutely certain it has happened yet, but I think that the interviews were taking place during the summer—and that is a shame, but we can rectify that to a certain extent by making this person accountable to Parliament. I beg to move.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on Amendment 30, which is an alternative version, and I wish to add my concerns. The Minister will know that there has been a lot of controversy about the overall public appointments process. There has been criticism in the press and from people who have been involved in acting as independent advisers on public appointments, in general and in particular.

The appointment of the current chair of the Office for Students was particularly controversial. There was criticism that the balance of the appointing committee appeared to be much more political than expert, and that the person appointed appeared to have no previous qualifications or expertise for the job, beyond having been a Conservative MP who had lost his seat and managed Boris Johnson’s campaign to be Prime Minister. That does not give us great confidence in the appointment of a freedom of speech champion; it also lessens confidence in the sector that the appointment process had been started so early. The Minister will be aware from the letter she had from a number of leading academics that this is one of their active concerns.

Given the particularly controversial nature of this appointment, if you want to achieve a degree of public confidence among those who will be affected by it in universities and elsewhere, it pays if it is seen to be a fair, open and reasonable process. That is not the case at present, and rumours of the sort of people who might be appointed—the names scattered around include those of one or two other Members of this House—would not at all assure the sector, so this is a particularly important process and appointment.

I ask the Minister to give us an assurance, as strongly as she can, that Universities UK, the Russell group and other stakeholders will be consulted about the process and the qualifications needed in such a person; that the appointing committee will be appropriate to the task to be undertaken; and that the Government will ensure, as far as possible, that the person appointed commands the confidence of those whom he or she will be regulating. That is not too much to ask but, against the context of what we have seen with public appointments in the past three or four years, it is a necessary ask. I hope she will be able to take us some way in that direction.

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Of course, members of the OfS board regularly appear before the Education Select Committee; for example, the chair and chief executive both appeared before it in May 2020 in relation to issues arising from the pandemic and, more recently, in September, the chief executive was a witness in relation to controversial research content and free speech.

[Baroness Thornton (Lab)]

Can the Minister say whether the chief executive or chair could refuse to allow the director for freedom of speech to appear in front of a Select Committee? Could they say, “Sorry, there is no requirement for them to do that and we are not going to let them”, even if that Select Committee has asked for them to do so?

[Baroness Barran (Con)]

I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.

[Baroness Barran (Con)]

The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.

The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.

Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.

Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.

[Baroness Thornton (Lab)]

I thank the Minister for that extensive explanation. We are probably 50% happy and 50% still worried, and part of the reason for that is that time has passed in terms of the appointment and so on, and the concerns expressed by the noble Lord, Lord Wallace, about how this has been achieved and why people might be worried about what the director for free speech might get up to and how they would do their job. It must be in the Government’s interest not to allow those concerns and worries to exist. I will of course withdraw the amendment, but I put on the record, as we have, that this is not where we would want to end up: we want more confidence in the system, rather than less. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.